Rupa Marya v. Warner Chappell Music Inc
Filing
259
DECLARATION of Betsy C. Manifold in Support of NOTICE OF MOTION AND MOTION to AMEND Amended Complaint, 95 Notice of Motion and Motion for Leave to Amend and File Fifth Amended Complaint 258 filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Manifold, Betsy)
EXHIBIT B
Exhibit B
Page 54
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BETSY C. MANIFOLD (182450)
manifold@whafh.com
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: 619/239-4599
Facsimile: 619/234-4599
Interim Lead Class Counsel for Plaintiffs
[Additional Counsel on Signature Page]
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION
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GOOD MORNING TO YOU
PRODUCTIONS CORP.;
ROBERT SIEGEL;
RUPA MARYA; and
MAJAR PRODUCTIONS, LLC,
On Behalf of Themselves and All
Others Similarly Situated,
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Plaintiffs,
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v.
WARNER/CHAPPELL MUSIC,
INC.; and SUMMY-BIRCHARD,
INC.,
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Defendants.
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Lead Case No. CV 13-04460-GHK (MRWx)
FIFOURTH AMENDED
CONSOLIDATED COMPLAINT FOR:
(1) DECLARATORY JUDGMENT
(28 U.S.C. § 2201);
(2) DECLARATORY AND
INJUNCTIVE RELIEF AND
DAMAGES (28 U.S.C. § 2202);
(3) VIOLATIONS OF CALIFORNIA’S
UNFAIR COMPETITION LAWS
(Bus. & Prof. Code §§ 17200 et seq.);
(4) BREACH OF CONTRACT;
(5) COMMON LAW MONEY HAD
AND RECEIVED;
(6) RESCISSION FOR FAILURE OF
CONSIDERATION; and
(7) VIOLATIONS OF CALIFORNIA’S
FALSE ADVERTISING LAWS
(Bus. & Prof. Code §§ 17500 et seq.)
CLASS ACTION
DEMAND FOR JURY TRIAL
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Exhibit B
Page 55
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Plaintiffs, Good Morning to You Productions Corp. (“GMTY”), Robert
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Siegel (“Siegel”), Rupa Marya d/b/a/ Rupa Marya & The April Fishes (“Rupa”), and
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Majar Productions, LLC (“Majar”) (collectively herein “Plaintiffs”), on behalf of
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themselves and all others similarly situated, by their undersigned attorneys, as and
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for their Fourth Amended Consolidated Complaint For: (1) Declaratory Judgment
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(28 U.S.C. § 2201); (2) Declaratory and Injunctive Relief and Damages (28 U.S.C. §
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2202); (3) Violations of California’s Unfair Competition Laws (Bus. & Prof. Code
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§§ 17200 et seq.); (4) Breach of Contract; (5) Common Law Money Had and
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Received; (6) Rescission for Failure of Consideration; and (7) Violations of
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California’s False Advertising Laws (Bus. & Prof. Code §§ 17500 et seq.) against
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defendants Warner/Chappell Music, Inc. (“Warner/Chappell”) and Summy-
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Birchard, Inc. (“SBI”) (collectively “Defendants”), hereby allege as follows:
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JURISDICTION AND VENUE
1.
The Court has subject-matter jurisdiction over this action pursuant to
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28 U.S.C. § 1331 and 28 U.S.C. § 1338 with respect to claims seeking declaratory
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and other relief arising under the Copyright Act, 17 U.S.C. §§ 101 et seq.; pursuant
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to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq.; pursuant to the Class
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Action Fairness Act, 28 U.S.C. § 1332(d)(2); and supplemental jurisdiction pursuant
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to 28 U.S.C. § 1367 over the entire case or controversy.
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2.
The Court has personal jurisdiction and venue is proper in this District
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under 28 U.S.C. §§ 1391(b)-(c) and 28 U.S.C. § 1400(a), in that the claims arise in
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this Judicial District where both Defendants’ principal places of business are located
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and where they regularly conduct business.
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3.
Paragraph 8 of the Film and Synchronization and Performance License
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(“Synchronization License”) by and between assignee plaintiff Siegel and defendant
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Warner/Chappell states: “this license has been entered into in, and shall be
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interpreted in accordance with the laws of the state of California, and any action or
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Exhibit B
Page 56
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proceeding concerning the interpretation and/or enforcement of this license shall be
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heard only in the state or federal courts situated in Los Angeles county. . . .”
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Defendant Warner/Chappell requires any action or proceeding related thereto to be
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brought in this District under the Synchronization License.
5
6
INTRODUCTION
4.
This is an action to declare that Defendants do not own a copyright to
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the world’s most popular song, Happy Birthday to You (the “Song”), that if
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Defendants own any copyright to the Song, it is limited to four specific piano
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arrangements or an obscure second verse that has no commercial value, that any
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other copyright to the Song that Defendants may own or ever owned are invalid or
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have expired, and that the Song is dedicated to public use and in the public domain;
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and in turn to declare that Defendants must return millions of dollars of unlawful
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licensing fees collected by defendant Warner/Chappell pursuant to its wrongful
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assertion of copyright ownership of the Song.
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5.
According to the United States Copyright Office (“Copyright Office”),
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a “musical composition consists of music, including any accompanying words, and
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is normally registered as a work of the performing arts.” Copyright Office Circular
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56A, “Copyright Registration of Musical Compositions and Sound Recordings,” at 1
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(Feb. 2012) (available at www.copyright.gov/circs/circ.56a.pdf). The author of a
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musical composition generally is the composer, and the lyricist (if a different
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person). Id.
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6.
More than 120 years after the melody to which the simple lyrics of
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Happy Birthday to You is set was first published, defendant Warner/Chappell
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boldly, but wrongfully and unlawfully, insists that it owns the copyright to Happy
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Birthday to You, and with that copyright the exclusive right to authorize the Song’s
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reproduction, distribution, and public performances pursuant to federal copyright
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law. At all relevant times, Warner/Chappell declared in the first two sentences on
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the “About Us” page of its website that “Warner/Chappell Music is [Warner Music
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Exhibit B
Page 57
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Group]’s award-winning global music publishing company. The Warner/Chappell
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Music catalog includes standards such as ‘Happy Birthday To You’. . .” (available
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at www.warnerchappell.com/about.jsp?currenttab=about_us as of June 18, 2013).
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Defendant Warner/Chappell either has silenced those wishing to record or perform
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Happy Birthday to You, or has extracted millions of dollars in unlawful licensing
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fees from those unwilling or unable to challenge its ownership claims.
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7.
Irrefutable documentary evidence, some dating back to 1893, shows
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that if defendant Warner/Chappell owned or owns any copyrights to Happy Birthday
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to You, those rights were and are limited to the extremely narrow right to reproduce
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and distribute specific piano arrangements for the Song, or an obscure second verse
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that has no commercial value, which were published in 1935. That same evidence
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also shows that if Warner/Chappell ever owned a copyright to any other part of the
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Song, it was invalid or expired no later than 1921. Significantly, no court has ever
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adjudicated either the scope or validity of the Defendants’ claimed interest in Happy
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Birthday to You, nor in the Song’s melody or its familiar lyrics, which are,
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themselves, independent works.
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8.
Various legal scholars and copyright and music industry experts agree
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with the foregoing, questioning the validity of Defendants’ assertion of copyright in
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the Song, and supporting the conclusion that Happy Birthday properly exists in the
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public domain. For example, Professor Robert Brauneis, Professor of Law and Co-
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Director of the Intellectual Property Law Program at George Washington
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University, and a leading legal scholar in intellectual property law, has stated that it
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is “doubtful” that Happy Birthday “is really still under copyright.”
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9.
Plaintiffs GMTY, Siegel, Rupa, and Majar, on behalf of themselves and
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all others similarly situated, seek a declaration that Happy Birthday to You is
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dedicated to public use and is in the public domain as well as monetary damages and
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restitution of all the unlawful licensing fees that defendants have improperly
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collected from Plaintiffs and all other Class members.
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Exhibit B
Page 58
1
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PLAINTIFFS
10.
Plaintiff GMTY is a New York corporation with its principal place of
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business located in New York County. Under a claim of copyright by defendant
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Warner/Chappell, on or about March 26, 2013, GMTY paid defendant
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Warner/Chappell the sum of $1,500 for a synchronization license to use Happy
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Birthday to You and on or about April 24, 2013, GMTY entered into a
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synchronization license with Warner/Chappell, as alleged more fully herein.
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11.
Plaintiff Robert Siegel is the assignee of BIG FAN PRODUCTIONS,
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INC. (“BIG FAN”), an inactive New York corporation and a resident of New York,
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New York. Under a claim of copyright by defendant Warner/Chappell, on or about
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September 1, 2009, BIG FAN paid to defendant Warner/Chappell the sum of $3,000
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for the Synchronization Licenses to use Happy Birthday to You, as alleged more
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fully herein. Plaintiff Siegel, the then-President of BIG FAN, was assigned BIG
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FAN’s rights and claims, including those pertaining to the Synchronization License
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pursuant to Paragraph 7 thereof between defendant Warner/Chappell and BIG FAN,
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entered into on or about July 20, 2009.
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12.
Plaintiff Rupa is a musician and leader of the band entitled “Rupa &
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The April Fishes” (“RTAF”), and a member of the American Society of Composers,
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Authors and Publishers (“ASCAP”). Plaintiff Rupa is a resident of San Mateo
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Alameda County, California. RTAF recorded Happy Birthday to You at a live show
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in San Francisco, California, on April 27, 2013. Under a claim of copyright by
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defendant Warner/Chappell, on or about June 17, 2013, plaintiff Rupa d/b/a RTAF
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paid to defendant Warner/Chappell the sum of $455 for a compulsory license
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pursuant to 17 U.S.C. § 115 (commonly known as a “mechanical license”) to use
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Happy Birthday to You, as alleged more fully herein.
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13.
Plaintiff Majar is a Los Angeles-based film production company that
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produced the award winning documentary film “No Subtitles Necessary: László &
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Vilmos” (hereafter, “No Subtitles Necessary” or the “Film”). The Film follows the
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Exhibit B
Page 59
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lives of renowned cinematographers László Kovacs (“Kovacs”) and Vilmos
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Zsigmond (“Zsigmond”) from escaping the 1956 Soviet invasion of Hungary to the
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present day. As film students in Hungary, Kovacs and Zsigmond shot footage of the
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Russian invasion of Budapest and subsequently risked their lives to smuggle it out
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of the country. They fled to America and settled in Hollywood, eventually saving
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enough money to buy their own 16mm camera to begin shooting movies. Both rose
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to prominence in the late 1960’s and 1970’s having shot films such as “Easy Rider,”
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“Five Easy Pieces,” “McCabe and Mrs. Miller,” “Deliverance,” “Paper Moon,” and
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“Close Encounters of the Third Kind.” No Subtitles Necessary tells the story of
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their lives and careers.
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DEFENDANTS
14.
Defendant Warner/Chappell is a Delaware corporation with its
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principal place of business located at 10585 Santa Monica Boulevard, Los Angeles,
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California 90025 and regularly conducts business within this Judicial District.
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15.
Defendant SBI is a Wyoming corporation with its principal place of
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business located at 10585 Santa Monica Boulevard, Los Angeles, California 90025.
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SBI regularly conducts business within this Judicial District, where it may be found.
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On information and belief, SBI is a subsidiary of Warner/Chappell, having been
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acquired by Warner/Chappell in or around 1998.
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FACTUAL BACKGROUND
Good Morning to All and the Popular Adoption of Happy Birthday to You
16.
Sometime prior to 1893, Mildred J. Hill (“Mildred Hill”) and her sister
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Patty Smith Hill (“Patty Hill”) (Mildred and Patty Hill are collectively referred to as
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the “Hill Sisters”) authored a written manuscript containing sheet music for 73
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songs composed or arranged by Mildred Hill, with words written and adapted by
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Patty Hill.
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17.
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The manuscript included Good Morning to All, a song written by the
Hill Sisters.
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Exhibit B
Page 60
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18.
On or about February 1, 1893, the Hill Sisters sold and assigned all
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their right, title, and interest in the written manuscript to Clayton F. Summy
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(“Summy”) in exchange for 10 percent of retail sales of the manuscript. The sale
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included the song Good Morning to All.
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19.
In or around 1893, Summy published the Hill Sisters’ written
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manuscript with an introduction by Anna E. Bryan (“Bryan”) in a songbook titled
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Song Stories for the Kindergarten. Song Stories for the Kindergarten included the
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song Good Morning to All.
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20.
On or about October 16, 1893, Summy filed a copyright application
(Reg. No. 45997) with the Copyright Office for Song Stories for the Kindergarten.
21.
On the October 16, 1893, copyright application, Summy claimed to be
the copyright’s proprietor, but not the author of the copyrighted works.
22.
Song Stories for the Kindergarten bears a copyright notice reading
“Copyright 1893, by Clayton F. Summy.”
23.
As proprietor of the 1893 copyright in Song Stories for the
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Kindergarten, Summy asserted copyright ownership in the compilation of songs, as
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well as, the individual songs published therein, including Good Morning to All.
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24.
The lyrics to Good Morning to All are:
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Good morning to you
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Good morning to you
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Good morning dear children
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Good morning to all.
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25.
The lyrics to Happy Birthday to You are set to the melody from the
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song Good Morning to All. As nearly everyone knows, the lyrics to Happy Birthday
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to You are:
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Happy Birthday to You
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Happy Birthday to You
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Happy Birthday dear [NAME]
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Exhibit B
Page 61
1
Happy Birthday to You.
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3
26.
The lyrics to Happy Birthday to You were not published in Song Stories
for the Kindergarten.
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27.
On or about January 14, 1895, Summy incorporated the Clayton F.
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Summy Company (“Summy Co.”) under the laws of the State of Illinois for a
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limited term of 25 years. On that same date, Summy purported to assign all his
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right, title, and interest in Song Stories for the Kindergarten to Summy Co.
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28.
In 1896, Summy published a new, revised, illustrated, and enlarged
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version of Song Stories for the Kindergarten, which contained eight previously
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unpublished songs written by the Hill Sisters as well as illustrations by Margaret
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Byers.
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29.
On or about June 18, 1896, Summy filed a copyright application (Reg.
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No. 34260) with the Copyright Office for the 1896 publication of Song Stories for
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the Kindergarten.
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30.
On its June 18, 1896, copyright application, Summy again claimed to
be the copyright’s proprietor, but (again) not the author of the copyrighted works.
31.
The 1896 version of Song Stories for the Kindergarten bears a
copyright notice reading “Copyright 1896, by Clayton F. Summy.”
32.
As proprietor of the 1896 copyright in the revised Song Stories for the
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Kindergarten, Summy owned the rights to both the songbook as a compilation and
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the individual songs published therein, including Good Morning to All.
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33.
The lyrics to Happy Birthday to You were not published in the 1896
version of Song Stories for the Kindergarten.
34.
In 1899, Summy Co. published 17 songs from the 1893 version of Song
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Stories for the Kindergarten in a songbook titled Song Stories for the Sunday
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School. One of those songs included in Song Stories for the Sunday School was
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Good Morning to All. And yet again, neither the song Happy Birthday nor the lyrics
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to Happy Birthday were published in “Song Stories for the Sunday School.”
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Exhibit B
Page 62
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2
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35.
On or about March 20, 1899, Summy Co. filed a copyright application
(Reg. No. 20441) with the Copyright Office for Song Stories for the Sunday School.
36.
On the 1899 copyright application, Summy Co. claimed to be the
copyright’s proprietor, but not the author of the copyrighted works.
5
37.
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This collection of songs has been published in response to earnest requests
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from various sources. They are taken from the book, Song Stories for the
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Kindergarten by the MISSES HILL, and are the copyright property of the
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publishers. (Emphasis added).
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38.
The title page to Song Stories for the Sunday School states:
Song Stories for the Sunday School bears a copyright notice reading
“Copyright 1899 by Clayton F. Summy Co.”
39.
As proprietor of the 1899 copyright in Song Stories for the Sunday
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School, Summy Co. owned the rights to both the songbook as a compilation and the
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individual songs published therein, including Good Morning to All.
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40.
The lyrics to Happy Birthday to You were not published in Song Stories
for the Sunday School.
41.
Even though the lyrics to Happy Birthday to You and the song Happy
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Birthday to You had not been fixed in a tangible medium of expression, the public
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began singing Happy Birthday to You no later than the early 1900s.
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42.
For example, in the January 1901 edition of Inland Educator and
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Indiana School Journal, the article entitled “First Grade Opening Exercises”
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described children singing the words “happy birthday to you,” but did not print the
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Song’s lyrics or melody.
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43.
In or about February, 1907, Summy Co. republished the song Good
Morning to All as an individual musical composition.
44.
On or about February 7, 1907, Summy Co. filed a copyright application
(Reg. No. 142468) with the Copyright Office for the song Good Morning to All.
45.
The lyrics to Happy Birthday to You do not appear in the 1907
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Exhibit B
Page 63
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publication of Good Morning to All.
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3
46.
In 1907, Fleming H. Revell Co. (“Revell”) published the book Tell Me
a True Story, arranged by Mary Stewart, which instructed readers to:
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Sing: “Good-bye to you, good-bye to you, good-bye dear children, good-
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bye to you.” Also: “Good-bye dear teacher.” (From “Song Stories for the
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Sunday-School,” published by Summy & Co.)
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Sing: “Happy Birthday to You.” (Music same as “Good-bye to You.”)
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47.
A239690) with the Copyright Office for Tell Me a True Story.
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On or about May 18, 1909, Revell filed an application (Reg. No.
48.
Tell Me a True Story did not include the lyrics to Happy Birthday to
49.
Upon information and belief, the lyrics to Happy Birthday to You
You.
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(without the sheet music for the melody) were first published in 1911 by the Board
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of Sunday Schools of the Methodist Episcopal Church (“Board of Sunday Schools”)
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in The Elementary Worker and His Work, by Alice Jacobs and Ermina Chester
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Lincoln, as follows:
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Happy birthday to you, Happy birthday to you, Happy birthday, dear John,
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Happy birthday to you. (Sung to the same tune as the “Good Morning”)
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[NOTE: The songs and exercises referred to in this program may be found in
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these books:... “Song Stories for the Sunday School,” by Patty Hill.]
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50.
On or about January 6, 1912, the Board of Sunday Schools filed a
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copyright application (Reg. No. A303752) with the Copyright Office for The
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Elementary Worker and His Work.
51.
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The Elementary Worker and His Work attributed authorship or
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identified the copyrights to many of the works included in the book. Significantly, it
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did not attribute authorship or identify any copyright for the song Happy Birthday to
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You.
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52.
On or about January 14, 1920, Summy Co. was dissolved in accordance
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Exhibit B
Page 64
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with its limited (not perpetual) 25-year term of incorporation. Summy Co. did not
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extend or renew the 1893 (Reg. No. 45997) or 1907 (Reg. No. 142468) copyrights
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prior to its dissolution.
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53.
Upon information and belief, by 1912, various companies (such as
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Cable Company Chicago) had begun producing unauthorized printings of sheet
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music which included the song known today as Happy Birthday (i.e., the melody of
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Good Morning to You with the lyrics changed to those of Happy Birthday). On
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information and belief, Cable Company Chicago never asserted copyright ownership
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in Happy Birthday.
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54.
On information and belief, in or before 1922, pursuant to authority granted to
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it by Patty or Jessica Hill, Summy Co. authorized The Cable Company
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(Chicago) (“Cable Co.”) to publish the music and lyrics to Happy Birthday to
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You. In 1922, pursuant to that authority, Cable Co. published the revised
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fourth edition of The Everyday Song Book with the music and lyrics to
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Happy Birthday to You, including the following note: “Special permission
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through courtesy of The Clayton F. Summy Co.” The Cable Company
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registered a copyright for the fourth edition of The Everyday Song Book in
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1921, which it did not renew. The publication of The Everyday Song Book in
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1922 was without a copyright notice.
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53.55.
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Copyright History of Good Morning to All
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54.56. Pursuant to Section 24 of the Copyright Act of 1909, the renewal rights
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to the original Song Stories for the Kindergarten, Song Stories for the Sunday
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School, and Good Morning to All were vested solely in their proprietor, Summy Co.
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55.57. Pursuant to Section 24 of the Copyright Act of 1909, the renewal rights
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to the revised Song Stories for the Kindergarten were vested solely in their
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proprietor, Summy Co.
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56.58. The copyright to the original Song Stories for the Kindergarten (Reg.
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Exhibit B
Page 65
1
No. 45997) was not extended by Summy Co., and consequently expired on October
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16, 1921. The original Song Stories for the Kindergarten, including the song Good
3
Morning to All, became dedicated to public use and fell into the public domain by
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no later than that date.
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57.59. The copyright to the revised Song Stories for the Kindergarten (Reg.
6
No. 34260) was not extended by Summy, and consequently expired on June 18,
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1924. The revised Song Stories for the Kindergarten became dedicated to public
8
use and fell into the public domain by no later than that date.
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58.60. In or around March 1924, the sheet music (with accompanying lyrics)
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to Happy Birthday to You was in a songbook titled Harvest Hymns, published,
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compiled, and edited by Robert H. Coleman (“Coleman”). Upon information and
12
belief, Harvest Hymns was the first time the melody and lyrics of Happy Birthday to
13
You were published together.
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59.61. Coleman did not claim authorship of the song entitled Good Morning
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to You or the lyrics to Happy Birthday to You. Although Harvest Hymns attributed
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authorship or identified the copyrights to many of the works included in the book, it
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did not attribute authorship or identify any copyright for Good Morning to You or
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Happy Birthday to You.
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60.62. On or about March 4, 1924, Coleman filed a copyright application
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(Reg. No. A777586) with the Copyright Office for Harvest Hymns. On or about
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February 11, 1952, the copyright was renewed (Reg. No. R90447) by the Sunday
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School Board of the Southern Baptist Convention.
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61.63. On or about April 15, 1925, Summy incorporated a new Clayton F.
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Summy Co. (“Summy Co. II”) under the laws of the State of Illinois.
Upon
25
information and belief, Summy Co. II was not a successor to Summy Co.; rather, it
26
was incorporated as a new corporation.
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62.64. The sheet music (with accompanying lyrics) to Happy Birthday to You
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was again published in 1928 in the compilation Children’s Praise and Worship,
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Exhibit B
Page 66
1
compiled and edited by A.L. Byers, Bessie L. Byrum, and Anna E. Koglin (“Byers,
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Byrum & Koglin”). Upon information and belief, Children’s Praise and Worship
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was the first time the song was published under the title Happy Birthday to You.
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63.65. On or about April 7, 1928, Gospel Trumpet Co. (“Gospel”) filed a
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copyright application (Reg. No. A1068883) with the Copyright Office for
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Children’s Praise and Worship.
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64.66. Children’s Praise and Worship attributed authorship or identified the
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copyrights to many of the works included in the book. Significantly, it did not
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attribute authorship or identify any copyright for the song Happy Birthday to You.
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65.67. Children’s Praise and Worship did not provide any copyright notice for
11
the combination of Good Morning to All with the lyrics to Happy Birthday to You,
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nor did it include the names of Mildred Hill or Patty Hill and did not attribute any
13
authorship or ownership to the Hill Sisters.
14
66.68. Upon information and belief, the Hill Sisters had not fixed the lyrics to
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Happy Birthday to You or the song Happy Birthday to You in a tangible medium of
16
expression, if ever, at any time before Gospel published Children’s Praise and
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Worship in 1928.
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67.69. Upon information and belief, Summy sold Summy Co. II to John F.
Sengstack (“Sengstack”) in or around 1930.
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68.70. Upon information and belief, on or about August 31, 1931, Sengstack
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incorporated a third Clayton F. Summy Co. (“Summy Co. III”) under the laws of the
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State of Delaware.
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successor to Summy Co. or Summy Co. II; rather, it was incorporated as a new
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corporation.
Upon information and belief, Summy Co. III was not a
25
69.71. On May 17, 1933, Summy Co. II was dissolved for failure to pay taxes.
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70.72. On July 28, 1933, Happy Birthday to You was used in the world’s first
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28
singing telegram.
71.73. On September 30, 1933, the Broadway show As Thousands Cheer,
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Exhibit B
Page 67
1
produced by Sam Harris with music and lyrics written by Irving Berlin, began using
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the song Happy Birthday to You in public performances.
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72.74. On August 14, 1934, Jessica Hill, a sister of Mildred Hill and Patty
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Hill, commenced an action against Sam Harris in the Southern District of New
5
York, captioned Hill v. Harris, Eq. No. 78-350, claiming that the performance of
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Happy to Birthday to You in As Thousands Cheer infringed on the Hill Sisters’ 1893
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and 1896 copyrights to Good Morning to All. Jessica Hill asserted no claim in that
8
action regarding Happy Birthday to You, alone or in combination with Good
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Morning to All.
10
73.75. On January 21, 1935, Jessica Hill commenced an action against the
11
Federal Broadcasting Corp. in the Southern District of New York, captioned Hill v.
12
Federal Broadcasting Corp., Eq. No. 79-312, claiming infringement on the Hill
13
Sisters’ 1893 and 1896 copyrights to Good Morning to All. Jessica Hill asserted no
14
claim in that action regarding Happy Birthday to You, alone or in combination with
15
Good Morning to All.
16
74.76. In 1934 and 1935, Jessica Hill sold and assigned to Summy Co. III
17
certain piano arrangements of Good Morning to All, including publishing, public
18
performance, and mechanical reproduction rights, copyright, and extension of
19
copyright in exchange for a percentage of the retail sales revenue from the sheet
20
music.
21
Applications for Copyright for New Musical Arrangement
22
75.77. On or about December 29, 1934, Summy Co. III filed an Application
23
for Copyright for Republished Musical Composition with new Copyright Matter
24
(Reg. No. E45655) with the Copyright Office for the song Happy Birthday.
25
76.78. In that December 1934 Application for Copyright, Summy Co. III
26
claimed to be the proprietor of the copyright as a work for hire by Preston Ware
27
Orem (“Orem”) and claimed the copyrighted new matter as “arrangement by piano
28
solo.”
- 13 -
Exhibit B
Page 68
1
77.79. The lyrics to Happy Birthday to You were not included on the work
2
registered with the Copyright Office as Reg. No. E45655. The application did not
3
contain the names of the Hill Sisters and did not claim copyright in the lyrics to
4
Happy Birthday to You alone or in combination with the melody of Good Morning
5
to All.
6
78.80. The work registered with the Copyright Office as Reg. No. E45655 was
7
not eligible for federal copyright protection in that it consisted entirely of
8
information that was common property and contained no original authorship, except
9
as to the arrangement itself.
10
79.81. On or about February 18, 1935, Summy Co. III filed an Application for
11
Copyright for Republished Musical Composition with new Copyright Matter (Reg.
12
No. E46661) with the Copyright Office for the song Happy Birthday.
13
80.82. In that February 1935 Application for Copyright, Summy Co. III
14
claimed to be the proprietor of the copyright as a work for hire by Orem and claimed
15
the copyrighted new matter as “arrangement for four hands at one piano.”
16
81.83. The lyrics to Happy Birthday to You were not included on the work
17
registered with the Copyright Office as Reg. No. E46661. The application did not
18
contain the names of the Hill Sisters and did not claim copyright in the lyrics to
19
Happy Birthday to You alone or in combination with the melody of Good Morning
20
to All.
21
82.84. The work registered with the Copyright Office as Reg. No. E46661 was
22
not eligible for federal copyright protection in that it consisted entirely of
23
information that was common property and contained no original authorship, except
24
as to the arrangement itself.
25
83.85. On or about April 5, 1935, Summy Co. III filed an Application for
26
Copyright for Republished Musical Composition with new Copyright Matter (Reg.
27
No. E47439) with the Copyright Office for the song Happy Birthday.
28
84.86. In that April 1935 Application for Copyright, Summy Co. III claimed
- 14 -
Exhibit B
Page 69
1
to be the proprietor of the copyright as a work for hire by Orem and claimed the
2
copyrighted new matter as “arrangement of second piano part.”
3
85.87. The lyrics to Happy Birthday to You were not included on the work
4
registered with the Copyright Office as Reg. No. E47439.
5
contain the names of the Hill Sisters and did not claim copyright in the lyrics to
6
Happy Birthday to You alone or in combination with the melody of Good Morning
7
to All.
The application did not
8
86.88. The work registered with the Copyright Office as Reg. No. E47439 was
9
not eligible for federal copyright protection in that it consisted entirely of
10
information that was common property and contained no original authorship, except
11
as to the arrangement itself.
12
87.89. On or about April 5, 1935, Summy Co. III filed an Application for
13
Copyright for Republished Musical Composition with new Copyright Matter (Reg.
14
No. E47440) with the Copyright Office for the song Happy Birthday.
15
88.90. In that additional April 1935 Application for Copyright, Summy Co. III
16
claimed to be the proprietor of the copyright as a work for hire by Orem and claimed
17
the copyrighted new matter as “arrangement for six hands at one piano.”
18
89.91. The lyrics to Happy Birthday to You were not included on the work
19
registered with the Copyright Office as Reg. No. E47440. The application did not
20
contain the names of the Hill Sisters and did not claim copyright in the lyrics to
21
Happy Birthday to You alone or in combination with the melody of Good Morning
22
to All.
23
90.92. The work registered with the Copyright Office as Reg. No. E47440 was
24
not eligible for federal copyright protection in that it consisted entirely of
25
information that was common property and contained no original authorship, except
26
as to the arrangement itself.
27
91.93. On December 9, 1935, Summy Co. III filed an Application for
28
Copyright for Republished Musical Composition with new Copyright Matter (Reg.
- 15 -
Exhibit B
Page 70
1
No. E51988) with the Copyright Office for Happy Birthday to You.
2
92.94. In that December 1935 Application for Copyright, Summy Co. III
3
claimed to be the proprietor of the copyright as a work for hire by R.R. Forman
4
(“Forman”) and claimed the copyrighted new matter as “arrangement for Unison
5
Chorus and revised text.”
6
Forman did not write the familiar first verse lyrics to Happy Birthday to You. The
7
sheet music deposited with the application credited Forman only for the
8
arrangement and for the obscure second verse lyrics that lack commercial value, not
9
for the familiar first verse lyrics, and did not credit the Hill Sisters with writing the
10
Upon information and belief, Plaintiffs allege that
lyrics to Happy Birthday to You.
11
93.95. For the first time, the lyrics to Happy Birthday to You, including an
12
obscure second verse that lacks commercial value as the revised text, were included
13
on the work registered with the Copyright Office as Reg. No. E51988. However,
14
the December 1935 Application for Copyright did not attribute authorship of the
15
lyrics to either of the Hill Sisters and did not claim copyright in the familiar first
16
verse lyrics to Happy Birthday to You alone or in combination with the melody of
17
Good Morning to All.
18
94.96. The work registered with the Copyright Office as Reg. No. E51988 was
19
expressly limited in scope and neither claimed nor provided copyright protection to
20
the familiar lyrics to Happy Birthday to You. If and to the extent the work registered
21
with the Copyright Office as Reg. No. E51988 had claimed copyright protection to
22
those familiar lyrics, that work was not eligible for federal copyright protection in
23
that it consisted entirely of work that was common property and contained no
24
original authorship, except as to the sheet music arrangement itself.
25
95.97. Based upon information and belief, the work registered as Reg. No.
26
E51988 was not eligible for federal copyright protection because Summy Co. III did
27
not have authorization from the author to publish any part of that work except as to
28
the arrangement and the obscure second verse.
- 16 -
Exhibit B
Page 71
1
96.98. On December 9, 1935, Summy Co. III filed an Application for
2
Copyright for Republished Musical Composition with new Copyright Matter (Reg.
3
No. E51990) with the Copyright Office for Happy Birthday to You.
4
97.99. In that additional December 1935 Application for Copyright, Summy
5
Co. III claimed to be the proprietor of the copyright as a work for hire by Orem and
6
claimed the copyrighted new matter as “arrangement as easy piano solo, with text.”
7
Upon information and belief, Plaintiffs allege that Orem did not write the familiar
8
lyrics to Happy Birthday to You. Upon information and belief, Plaintiffs also allege
9
that the sheet music deposited with the application did not credit either Orem or the
10
11
Hill Sisters for writing the lyrics to Happy Birthday to You.
98.100.
Some lyrics to Happy Birthday to You may have been included
12
on the work registered with the Copyright Office as Reg. No. E51990. However,
13
the additional December 1935 Application for Copyright did not attribute authorship
14
of the lyrics to either of the Hill Sisters, did not contain the names of either of the
15
Hill Sisters, and did not claim any copyright in the lyrics to Happy Birthday to You
16
alone or in combination with the melody of Good Morning to All.
17
99.101.
The work registered with the Copyright Office as Reg. No.
18
E51990 was expressly limited in scope and neither claimed nor provided copyright
19
protection to the familiar lyrics to Happy Birthday to You. If and to the extent the
20
work registered with the Copyright Office as Reg. No. E51990 had claimed
21
copyright protection to those familiar lyrics, that work was not eligible for federal
22
copyright protection in that it consisted entirely of information that was common
23
property and contained no original authorship, except as to the sheet music
24
arrangement itself.
25
100.102.
Based upon information and belief, the work registered as Reg.
26
No. E51990 was not eligible for federal copyright protection because Summy Co. III
27
did not have authorization from the author to publish any part of that work except as
28
to the arrangement.
- 17 -
Exhibit B
Page 72
101.103.
1
Based upon information and belief, in or about February, 1938,
2
Summy Co. III purported to grant to ASCAP the right to license Happy Birthday to
3
You for public performances and to collect fees for such use on behalf of Summy
4
Co. III. ASCAP thus began working as agent for Summy Co. III in collecting fees
5
for Summy Co. III for licensing Happy Birthday to You.
6
102.104.
On or about June 8, 1942, Patty Hill and Jessica Hill assigned all
7
of their interest in the 1893, 1896, 1899 and 1907 copyrights to The Hill
8
Foundation.
9
103.105.
On October 15, 1942, The Hill Foundation commenced an action
10
against Summy Co. III in the Southern District of New York, captioned The Hill
11
Foundation, Inc. v. Clayton F. Summy Co., Case No. 19-377, for an accounting of
12
the royalties received by Summy Co. III for the licensing of Happy Birthday to You.
13
The Hill Foundation asserted claims under the 1893, 1896, 1899, and 1907
14
copyrights for Good Morning to All and did not claim any copyright to the lyrics to
15
Happy Birthday to You, alone or in combination with the melody of Good Morning
16
to All.
17
104.106.
On March 2, 1943, The Hill Foundation commenced an action
18
against the Postal Telegraph Cable Company in the Southern District of New York,
19
captioned The Hill Foundation, Inc. v. Postal Telegraph-Cable Co., Case No. 20-
20
439, for infringement of the Hill Sisters’ purported 1893, 1896, and 1899 copyrights
21
to Good Morning to All. The Hill Foundation asserted claims only under the 1893,
22
1896, and 1899 copyrights for Good Morning to All and did not claim any copyright
23
to the lyrics to Happy Birthday to You, alone or in combination with the melody of
24
Good Morning to All.
25
105.107.
Despite the filing of at least four prior cases in the Southern
26
District of New York asserting copyrights to Good Morning to All, there has been
27
no judicial determination of the validity or scope of any copyright related to Good
28
Morning to All.
- 18 -
Exhibit B
Page 73
1
2
3
106.108.
In or about 1957, Summy Co. III changed its name to Summy-
Birchard Company.
107.109.
In 1962, Summy Co. III (renamed as Summy-Birchard
4
Company) filed renewals for each of the six registrations it obtained in 1934 and
5
1935 (Reg. Nos. E45655, E46661, E47439, E47440, E51988, and E51990), each
6
renewal was specifically and expressly confined to the musical arrangements.
7
108.110.
In particular, on December 6, 1962, Summy Co. III filed a
8
renewal application for Reg. No. E51988, as employer for hire of Forman. Forman
9
did not write the familiar first verse lyrics to Happy Birthday to You or the
10
combination of those lyrics with the melody of Good Morning to All, and neither
11
Summy Co. III nor Defendants have claimed otherwise.
12
109.111.
Also on December 6, 1962, Summy Co. III filed a renewal
13
application for Reg. No. E51990, as employer for hire of Orem. Orem did not write
14
the lyrics to Happy Birthday to You or the combination of those lyrics with the
15
melody of Good Morning to All, and neither Summy Co. III nor Defendants have
16
claimed otherwise.
17
110.112.
Summy-Birchard Company was renamed Birch Tree Ltd. in the
18
1970s and was acquired by Warner/Chappell in or about 1998. On information and
19
belief, this entity now operates as “Summy Birchard, Inc.” – currently a subsidiary
20
of Warner/Chappell and Warner/Chappell’s co-defendant herein.
21
Happy Birthday to You – 100 Years Later
22
23
24
111.113.
According to a 1999 press release by ASCAP, Happy Birthday to
You was the most popular song of the 20th Century.
112.114.
The 1998 edition of the Guinness Book of World Records
25
identified Happy Birthday to You as the most recognized song in the English
26
language.
27
28
113.115.
Defendant Warner/Chappell currently claims it owns the
exclusive copyright to Happy Birthday to You based on the piano arrangements that
- 19 -
Exhibit B
Page 74
1
Summy Co. III published in 1935.
2
114.116.
ASCAP provides non-dramatic public performance licenses to
3
bars, clubs, websites, and many other venues. ASCAP “blanket licenses” grant the
4
licensee the right to publicly perform any or all of the over 8.5 million songs in
5
ASCAP’s repertory in exchange for an annual fee. The non-dramatic public
6
performance license royalties are distributed to ASCAP members based on surveys
7
of performances of each ASCAP repertory song across different media. As an
8
ASCAP member and assignee of the copyrights in Happy Birthday to You,
9
Defendant Warner/Chappell obtains a share of blanket license revenue that would
10
otherwise be paid to all other ASCAP members, in proportion to their songs’ survey
11
shares.
Plaintiff GMTY’s Use of Happy Birthday to You
12
13
14
115. Plaintiff GMTY is producing a documentary movie, tentatively titled
Happy Birthday, about the song Happy Birthday to You.
15
16
116. In one of the proposed scenes to be included in Happy Birthday, the
song Happy Birthday to You is to be sung.
17
18
117. During the production process, plaintiff GMTY learned that defendant
Warner/Chappell claimed exclusive copyright ownership to Happy Birthday to You.
19
118. Accordingly, in September 2012, plaintiff requested a quote from
20
Warner/Chappell for a synchronization license to use Happy Birthday to You from
21
Warner/Chappell’s website.
22
119. On or about September 18, 2012, defendant Warner/Chappell
23
responded to plaintiff GMTY’s inquiry by demanding that GMTY pay it the sum of
24
$1,500 and enter into a synchronization license agreement to use Happy Birthday to
25
You.
26
120. On or about March 12, 2013, defendant Warner/Chappell again
27
contacted plaintiff GMTY and insisted that GMTY was not authorized to use Happy
28
Birthday to You unless it paid the licensing fee of $1,500 and entered into the
- 20 -
Exhibit B
Page 75
1
synchronization license that Warner/Chappell demanded.
2
121. Because defendant Warner/Chappell notified plaintiff GMTY that it
3
claimed exclusive copyright ownership of Happy Birthday to You, GMTY faced a
4
statutory penalty of up to $150,000 under the Copyright Act if it used the song
5
without Warner/Chappell’s permission if Warner/Chappell, in fact, owned the
6
copyright that it claimed.
7
122. Faced with a threat of substantial penalties for copyright infringement,
8
on or about March 26, 2013, plaintiff GMTY was forced to and did pay defendant
9
Warner/Chappell the sum of $1,500 for a synchronization license and, on or about
10
April 24, 2013, GMTY was forced to and did enter into the synchronization license
11
agreement to use Happy Birthday to You.
12
Plaintiff Siegel’s Use of Happy Birthday to You
13
123. BIG FAN produced a movie titled Big Fan.
14
124. In one of the scenes in Big Fan, the familiar lyrics of the song Happy
15
Birthday to You was sung by the actors.
16
125. (a)
17
before Big Fan was released, BIG FAN retained the services of a music
18
supervisor to secure the rights to all the music that was used in the movie.
In the early summer of 2009, after filming was complete but
19
(b)
20
and advised BIG FAN that it would have to obtain a license from
21
Warner/Chappell and pay a fee to Warner/Chappell to perform Happy
22
Birthday to You in the movie because Warner/Chappell claimed to own
23
the exclusive copyright to the Song.
24
(c)
25
producer regarding the copyright claim by Warner/Chappell, BIG FAN
26
reasonably believed that Warner/Chappell owned the copyright to
27
Happy Birthday to You, and would have to obtain a synchronization
The music supervisor identified which music was copyrighted,
Reasonably relying upon the information provided by the music
28
- 21 -
Exhibit B
Page 76
1
license from and pay a fee to Warner/Chappell to use the Song in the
2
movie.
3
126. Accordingly, in July 2009, BIG FAN requested that the music
4
supervisor obtain a quote from Warner/Chappell for a Synchronization License to
5
use Happy Birthday to You in Big Fan.
6
127. On or about July 20, 2009, Defendant Warner/Chappell responded to
7
the music supervisor by demanding that BIG FAN pay it the sum of $3,000 and
8
enter into a synchronization license for use of Happy Birthday to You.
9
128. Because Defendant Warner/Chappell notified BIG FAN through the
10
music supervisor that it claimed exclusive copyright ownership of Happy Birthday
11
to You, BIG FAN faced a statutory penalty of $150,000 under the Copyright Act if
12
BIG
13
Warner/Chappell, in fact, owned the copyright that it claimed.
FAN
used
the
Song
without
Warner/Chappell’s
permission
and
14
129. On July 20, 2009, Plaintiff Siegel as President of BIG FAN executed
15
the synchronization license with Warner/Chappell and agreed to pay $3,000 based
16
upon Big Fan’s theatrical release.
17
130. (a)
Faced with a threat of substantial penalties for copyright
18
infringement, on or about September 1, 2009, BIG FAN was forced to, and did, pay
19
defendant Warner/Chappell the sum of $3,000 pursuant to the synchronization
20
license.
21
(b)
BIG FAN, the music producer it hired, and Plaintiff Siegel did
22
not know, and had no reason to know, that Warner/Chappell did not own any
23
copyright to Happy Birthday to You, that the rights Warner/Chappell could
24
claim were limited just to the piano arrangements or the obscure second verse
25
of the Song (which was not performed in Big Fan), or that any copyright
26
other than that was invalid or expired.
27
28
- 22 -
Exhibit B
Page 77
1
(c)
BIG FAN, the music producer it hired, and Plaintiff Siegel had
2
no reason to question Warner/Chappell’s claim to own the copyright to the
3
Song.
4
(d)
Warner/Chappell did not specify which registration(s) or
5
renewal(s) thereof under which it claimed a copyright to Happy Birthday to
6
You, and thus BIG FAN, the music producer it hired, and Plaintiff Siegel
7
could not investigate Warner/Chappell’s claim to determine whether Warner
8
Chappell owned the copyright it claimed or whether that copyright was valid.
9
(e)
The commencement of this action on or about June 13, 2013,
10
was widely reported in the press. Prior to the date when the press first
11
reported the claims asserted herein, no one in the position of BIG FAN, the
12
music producer hired by BIG FAN, or Plaintiff Siegel would know, or have
13
any reason to know, that Warner/Chappell’s copyright claim for Happy
14
Birthday to You was in doubt.
15
(f)
Plaintiff Siegel learned of the commencement of this action on or
16
about June 14, 2013, from the press reports. Before then, BIG FAN, the
17
music producer it hired, and Plaintiff Siegel did not know, and had no reason
18
to know, that Warner/Chappell’s copyright claim for Happy Birthday to You
19
had been disputed by anyone or was in doubt.
20
(g)
Shortly thereafter, on or about June 19, 2013, and significantly
21
less than three years after he knew or reasonably could or should have known
22
that Warner/Chappell does not own a copyright to the Song, or that its
23
copyright is not valid, plaintiff Siegel commenced a separate class action in
24
Los Angeles County pursuant to the terms of the Synchronization License.
25
Rupa’s Performance of Happy Birthday to You
26
131. Plaintiff Rupa d/b/a RTAF recorded the song Happy Birthday to You at
27
a live show in San Francisco, to be released as part of a “live” album. She learned
28
that defendant Warner/Chappell claimed exclusive copyright ownership to Happy
- 23 -
Exhibit B
Page 78
1
Birthday to You, including the right to issue mechanical licenses.
2
132. Section 115 of the Copyright Act provides for compulsory licenses for
3
the distribution of phonorecords and digital phonorecord deliveries (i.e., Web-based
4
“downloads”) of musical compositions. Failure to obtain such a license prior to
5
distribution of a cover version of a song constitutes a copyright infringement subject
6
to the full remedies of the Copyright Act.
7
133. Accordingly, on June 17, 2013, Plaintiff Rupa provided a Notice of
8
Intention
9
Warner/Chappell $455 for a mechanical license for the reproduction and distribution
to
Obtain
Compulsory
License
10
Warner/Chappell and paid
of 5,000 copies of the Song.
11
to
Plaintiff Majar Use of Happy Birthday to You
12
134. (a) Plaintiff Majar produced the Film entitled “No Subtitles Necessary:
13
László & Vilmos.” The Film follows the lives of renowned cinematographers
14
László Kovacs (“Kovacs”) and Vilmos Zsigmond (“Zsigmond”) from
15
escaping the 1956 Soviet invasion of Hungary to the present day.
16
(b)
Plaintiff Majar wished to use the Happy Birthday to You in the
17
opening scene of the Film, wherein Zsigmond and others sang the Song to
18
Kovacs in a celebration of Kovacs’ life and the friendship of the two, thereby
19
setting the tone for the Film.
20
(c)
In or around the fall of 2008, during production of the Film,
21
Plaintiff Majar learned from the music clearance supervisor working on the
22
Film that defendant Warner/Chappell claimed exclusive copyright ownership
23
to Happy Birthday to You, including for purposes of issuing synchronization
24
licenses, and that if Majar wished to include the Song in the Film, a license
25
would have to be procured and a fee be paid to Warner/Chappell.
26
director of the Film, James Chressanthis, spoke to experienced producers in
27
the industry, who confirmed that it was common knowledge within the
The
28
- 24 -
Exhibit B
Page 79
1
entertainment industry that Warner/Chappell widely claimed exclusive
2
copyright ownership of the Song.
3
(d)
Accordingly, upon making the final determination to include use
4
of the Song in the Film, Plaintiff Majar proceeded to obtain a license for the
5
Song from Warner/Chappell.
6
Plaintiff Majar as the exclusive owner of the copyright in the Song (although
7
it did not specify which registration number(s) or renewal number(s) under
8
which it claimed to own a copyright). Thus, on or about October 29, 2009,
9
Plaintiff Majar paid to defendant Warner/Chappell the sum of $5,000 for a
10
synchronization license to use Happy Birthday in the Film. At the time,
11
Plaintiff Majar did not question and had no reason to question
12
Warner/Chappell’s claim of copyright ownership. Moreover, Plaintiff Majar
13
is informed and believes that Warner/Chappell continued to hold itself out as
14
the exclusive copyright owner of the Song for years after Majar licensed it.
15
(e)
Because
Indeed, Warner/Chappell held itself out to
Defendant
Warner/Chappell
claimed
exclusive
16
copyright ownership of Happy Birthday to You, Plaintiff Majar faced a
17
statutory penalty of $150,000 under the Copyright Act, 17 U.S.C. § 101 et
18
seq., if it used the Song without Warner/Chappell’s permission and
19
Warner/Chappell, in fact, owned the copyright that it claimed.
20
(f)
Plaintiff Majar did not question, and had no reason to question,
21
on October 29, 2009 (and continuing thereafter), Warner/Chappell’s claim to
22
own the copyright to the Song. Moreover, Plaintiff Majar did not know, and
23
had no reason to know, on October 29, 2009 (and continuing thereafter), that
24
Warner/Chappell’s copyright claim for Happy Birthday to You had been
25
disputed by anyone.
26
(g)
Plaintiff Majar only first learned that Warner/Chappell’s claim of
27
exclusive copyright ownership in the Song was subject to dispute when news
28
of the same was published in a New York Times article on June 13, 2013.
- 25 -
Exhibit B
Page 80
1
Plaintiff Majar contacted counsel and joined as a plaintiff in this action
2
promptly thereafter.
3
Delayed Discovery, Concealment of the Truth Regarding the Limited
4
Copyright, and Equitable Tolling
5
6
7
135. (a)
In or about 2012, Plaintiff GMTY’s principal learned of a
dispute regarding Defendants’ claim to own the copyright to Happy Birthday to You.
(b)
On March 12, 2013, however, Defendants informed Plaintiff
8
GMTY’s principal in writing that Plaintiff GMTY was not authorized to use
9
the Song. Before licensing Happy Birthday to You from Defendants and
10
paying a synchronization license fee to Defendants, Plaintiff GMTY did not
11
know, and in the exercise of reasonable care, could not have known, that
12
Defendants’ copyrights in fact did not cover the Song’s familiar lyrics.
13
(c)
Plaintiff GMTY thereafter discovered additional facts sufficient
14
to challenge whether Defendants’ copyrights cover the Song’s familiar lyrics.
15
136. (a)
Before licensing Happy Birthday to You from Defendants and
16
paying fees for synchronization licenses to Defendants, Plaintiff Siegel and BIG
17
FAN did not know, and in the exercise of reasonable care, could not have known,
18
that Defendants’ copyrights in fact did not cover the Song’s familiar lyrics.
19
(b)
After the commencement of this action in 2013, Plaintiff Siegel
20
and BIG FAN thereafter discovered additional facts sufficient to challenge
21
whether Defendants’ copyrights cover the Song’s familiar lyrics.
22
137. (a)
Before licensing Happy Birthday to You from Defendants and
23
paying fees for a mechanical license to Defendants, Plaintiff Rupa did not know,
24
and in the exercise of reasonable care, could not have known, that Defendants’
25
copyrights in fact did not cover the Song’s familiar lyrics.
26
27
(b)
Plaintiff Rupa thereafter discovered additional facts sufficient to
challenge whether Defendants’ copyrights cover the Song’s familiar lyrics.
28
- 26 -
Exhibit B
Page 81
1
138. (a)
Before licensing Happy Birthday to You from Defendants and
2
paying fees for synchronization licenses to Defendants, Plaintiff Majar did not
3
know, and in the exercise of reasonable care, could not have known, that
4
Defendants’ copyrights in fact did not cover the Song’s familiar lyrics.
5
(b)
After the commencement of this action in 2013, Plaintiff Majar
6
thereafter discovered additional facts sufficient to challenge whether
7
Defendants’ copyrights cover the Song’s familiar lyrics.
8
139. At all times relevant hereto, Defendants and their predecessors-in-
9
interest consistently and uniformly insisted they were the owner of the copyright to
10
Happy Birthday to You.
11
140. At all times relevant hereto, Defendants and their predecessors-in-
12
interest consistently and uniformly demanded that all would-be users of Happy
13
Birthday to You obtain licenses or permission from them to use, perform, or publish
14
the Song.
15
141. At all times relevant hereto, Defendants and their predecessors-in-
16
interest consistently and uniformly demanded payment for the right to use, perform,
17
or publish Happy Birthday to You from all would-be users of the Song under and by
18
virtue of their claim of copyright ownership alleged herein.
19
142. At all times relevant hereto, Defendants or their predecessors-in-
20
interest have been in possession of, or have known the terms of: (a) the early 1890s
21
assignment from Patty Hill and Mildred Hill to Summy Co., which related only to
22
Good Morning to All; (b) the 1934 and 1935 assignment from Jessica Hill to Summy
23
Co. of only the rights to various piano arrangements to the musical composition
24
Good Morning to All; and (c) the 1944 assignment from Patty Hill and Jessica Hill
25
via the Hill Foundation to Summy Co. Those assignments allowed Defendants and
26
their predecessors-in-interest to know that they did not acquire any rights to the
27
Happy Birthday to You lyrics from Patty Hill, Jessica Hill, or the Hill Foundation.
28
- 27 -
Exhibit B
Page 82
1
143. For that reason, among others, knowing that the 1935 copyrights
2
E51988 and E51990 did not cover the Song’s familiar lyrics, when Summy Co.
3
commenced three lawsuits alleging copyright infringement related to Happy
4
Birthday to You after acquiring whatever limited rights it ever obtained from the
5
Hill sisters and the Hill Foundation, it did not even mention either of the 1935
6
copyrights. Those assignments were not publicly disclosed at any time prior to the
7
commencement of this action.
8
144. At all times relevant hereto, Defendants and their predecessors-in-
9
interest were told repeatedly, and knew or should have known, that: (a) neither the
10
Hill sisters nor the Hill Foundation transferred to Summy Co. any rights to the
11
Happy Birthday to You lyrics; (b) at most, Summy Co. obtained from the Hill sisters
12
or the Hill Foundation only limited rights to various piano arrangements of the
13
melody shared by Good Morning to All and Happy Birthday to You; (c) the
14
copyrights to that common melody expired no later than September 3, 1949, by
15
which date the melody entered the public domain; (d) the 1935 work-for-hire
16
copyrights are limited to only the new work added by Summy Co.’s employees,
17
Forman and Orem; (e) Summy’s employees, Forman and Orem, did not write the
18
familiar Happy Birthday to You lyrics; and (f) the 1935 work-for-hire copyrights did
19
not cover the Happy Birthday to You lyrics.
20
145. For example, in or about 1934, in a motion to dismiss Hill v. Harris,
21
Eq. No. 78-350, defendants Irving Berlin and Sam Harris asserted that the original
22
copyright to Good Morning to All was not properly renewed and therefore had
23
lapsed in 1921. In the motion to dismiss, those defendants also asserted that the
24
complaint in that action failed to allege that Summy Co. was “the proprietor of the
25
composition in question,” and thus could not copyright it.
26
146. On or about April 18, 1945, the defendant answered the complaint in
27
Clayton F. Summy Co. v. Louis Marx & Co., No. 30-285 (S.D.N.Y.), and asserted
28
- 28 -
Exhibit B
Page 83
1
that the original copyright to Good Morning to All was not properly renewed and
2
therefore had lapsed in 1921.
3
147. Upon information and belief, Defendants’ predecessor-in-interest
4
received an inter-office communication from Universal City Studios on or about
5
July 1, 1964, stating that the copyright asserted and relied upon by Defendants and
6
their predecessors “covers only the particular [piano] arrangement” and that “no one
7
could claim copyright in the new [Happy Birthday] lyrics.” The substance of that
8
communication was not publicly disclosed prior to the commencement of this
9
action.
10
148. Likewise, upon information and belief, beginning in 1963, in meetings
11
with Defendants’ predecessor-in-interest and in correspondence with the Harry Fox
12
Agency (“Fox”), as agent for Defendants’ predecessor-in-interest Summy Co.
13
(which is in the possession of Defendants and their predecessors but which was
14
never publicly disclosed), Walt Disney Productions (“Disney”) disputed the scope
15
and ownership of the copyright to Happy Birthday to You.
16
149. In an October 18, 1963, letter, to Fox, as agent for Summy Co.,
17
Disney’s Music Manager detailed their copyright research of Happy Birthday to
18
You, beginning with Mildred and Patty Hill’s publication of Good Morning to All in
19
Song Stories for the Kindergarten, and noted that “no one knows who first changed
20
the words “good morning” to ‘happy birthday.” Disney’s conclusion was that “the
21
song together with the lyrics are now in the public domain.” [WC1411-
22
12/CONFIDENTIAL] The substance of that communication was not disclosed to
23
the public prior to the commencement of this action.
24
150. On or about May 12, 1964, in a letter to the Fox, as agent for Summy
25
Co., Disney’s Music Manager asserted that “‘HAPPY BIRTHDAY TO YOU’ is
26
definitely in the public domain.” [WC 1416/CONFIDENTIAL] The substance of
27
that communication was not disclosed to the public prior to the commencement of
28
this action.
- 29 -
Exhibit B
Page 84
1
151. In a letter to counsel for Defendants’ predecessor Summy Co. dated
2
November 6, 1964, Disney offered $1,000 for five uses of Happy Birthday to You
3
“not in acknowledgment that there is a protected right in [the Song] but to pass over
4
that question and get a whitewash from your client.” [WC1414/CONFIDENTIAL]
5
The substance of that communication was not disclosed to the public prior to the
6
commencement of this action.
7
152. On December 13, 1971, Disney’s counsel wrote to Fox, as agent for
8
Summy Co., and reiterated its prior offer to pay $250 as a “tribute” for each use of
9
Happy Birthday to You for “the simple reason that although we firmly believe that
10
we would prevail in any litigation” that “business practices dictates that a small
11
payment is better than expensive litigation.”
12
having “recontacted various copyright experts,” Disney was “willing once and for
13
all to fight this matter in the event you are asking an amount greater than previously
14
paid by us.” [WC1415/CONFIDENTIAL] The substance of that communication
15
was not disclosed to the public prior to the commencement of this action.
Disney’s counsel also noted that
16
153. In a letter to Fox and Defendants’ predecessor-in-interest Summy-
17
Birchard Music dated May 11, 1983, Disney’s Music Manager responded to a
18
request from Fox, on behalf of Summy-Birchard Music, for a $5,000 fee for a ten-
19
year license of Happy Birthday to You for an exhibit at the Horizons Pavilion at
20
EPCOT by offering a “tribute payment” of just $250 to use the Song for a decade.
21
Disney’s Music Manager stated that the original song Good Morning to All and the
22
“alleged adaptation,” i.e., Happy Birthday to You, “are both in the public domain
23
around the world,” but offered the nominal sum “only to avoid litigation to prove
24
that they are free to use.” [WC1422-23/CONFIDENATIAL] The substance of that
25
communication was not disclosed to the public prior to the commencement of this
26
action.
27
28
- 30 -
Exhibit B
Page 85
1
154. At various times relevant hereto, Defendants and their predecessors-in-
2
interest claimed that Summy Co.’s employee Orem may have written the familiar
3
Happy Birthday to You lyrics, either alone, together, or with Mildred or Patty Hill.
4
155. At various times relevant hereto, Defendants and their predecessors-in-
5
interest claimed that Mildred Hill wrote the familiar Happy Birthday to You lyrics,
6
either alone or together with Patty Hill or with Summy Co.’s employee Orem.
7
156. At all times relevant hereto, Defendants and their predecessors-in-
8
interest concealed the fact that Summy Co.’s employees, Forman and Orem, did not
9
write the familiar Happy Birthday to You lyrics, either alone, together, or with
10
Mildred or Patty Hill.
11
157. At various times relevant hereto, Defendants and their predecessors-in-
12
interest encouraged others to conceal the fact that Summy Co.’s employees, Forman
13
and Orem, did not write the familiar Happy Birthday to You lyrics, either alone,
14
together, or with Mildred or Patty Hill.
15
158. At all times relevant hereto, Defendants and their predecessors-in-
16
interest concealed the fact that the 1935 copyrights covered only the piano
17
arrangements composed by Summy Co.’s employees-for-hire and did not cover the
18
Happy Birthday to You lyrics.
19
159. At various times relevant hereto, Defendants and their predecessors-in-
20
interest encouraged others to conceal the fact that the 1935 copyrights covered only
21
the piano arrangements composed by Summy Co.’s employees-for-hire and did not
22
cover the Happy Birthday to You lyrics.
23
160. In part as a result of the actions of Defendants and their predecessors-
24
in-interest alleged herein, Plaintiffs and all other users of Happy Birthday to You did
25
not know, had no reason to know, and in the exercise or reasonable care could not
26
know that Defendants and their predecessors-in-interest did not own a copyright to
27
the Song itself, but rather only to two piano arrangements composed by Summy
28
Co.’s employees for hire.
- 31 -
Exhibit B
Page 86
1
161. In part as a result of the misrepresentations and concealment of material
2
fact alleged above, and in part as a result of the complexity of the historical record
3
surrounding the song, in the exercise of reasonable care, Plaintiffs did not know, had
4
no reason to know, and in the exercise of reasonable care could not know that
5
Defendants did not own any copyright to the familiar Happy Birthday to You lyrics.
6
162. In part as a result of the misrepresentations and concealment of material
7
fact alleged above, and in part as a result of the complexity of the historical record
8
surrounding the song, users of the Song did not know, had no reason to know, and in
9
the exercise of reasonable care could not know that Defendants and their
10
predecessors-in-interest did not own any copyright to the familiar Happy Birthday to
11
You lyrics.
12
CLASS ALLEGATIONS
13
135.163.
Plaintiffs GMTY, Siegel, Rupa, and Majar bring this action
14
pursuant to Rule 23(a)-(b) of the Federal Rules of Civil Procedure as a class action
15
on behalf of themselves and all others similarly situated for the purpose of asserting
16
the claims alleged in this Consolidated Fourth Amended Complaint on a common
17
basis.
18
136.164.
19
All persons or entities (excluding Defendants’ directors, officers,
20
employees, and affiliates) who entered into a license with
21
Defendants or their predecessors-in-interestWarner/Chappell, or
22
paid Warner/Chappell or SBI,Defendants or their predecessors-in-
23
interest, directly or indirectly through its agents, a licensing fee for
24
the song Happy Birthday to You at any time from June 18,
25
2009since at least September 3, 1949 (the latest date on which the
26
copyright to Good Morning to All expired), until Defendants’
27
conduct as alleged herein has ceased.
The proposed Class is comprised of:
28
- 32 -
Exhibit B
Page 87
1
137.165.
Although Plaintiffs GMTY, Siegel, Rupa, and Majar do not
2
know the exact size of the Class or the identities of all members of the Class, upon
3
information and belief that information can be readily obtained from the books and
4
records of defendant Warner/Chappell. Plaintiffs believe that the Class includes
5
thousands of persons or entities who are widely geographically disbursed. Thus, the
6
proposed Class is so numerous that joinder of all members is impracticable.
7
8
9
138.166.
questions of law and fact including:
a.
10
11
whether Happy Birthday to You is in the public domain and dedicated
to public use;
b.
12
13
The claims of all members of the Class involve common
whether the 1935 copyrights claimed by Warner/Chappell cover the
popular lyrics to Happy Birthday to You;
c.
whether Defendants and their predecessors-in-interest knew or should
14
have known that the 1935 copyrights did not cover the popular Happy
15
Birthday to You lyrics;
16
d.
whether Defendants and their predecessors-in-interest misrepresented
17
that the 1935 copyrights covered the familiar Happy Birthday to You
18
lyrics;
19
e.
Defendants and their predecessors-in-interest concealed the fact that the
20
1935 copyrights covered only the piano arrangements composed by
21
Summy Co.’s employees-for-hire, not the familiar Happy Birthday to
22
You lyrics;
23
f.
whether, in the exercise of reasonable care, Plaintiffs and the other
24
members of the Class knew or could have known that Defendants did
25
not own any copyright to the familiar Happy Birthday to You lyrics;
26
b.g.
27
28
whether the commencement of any applicable statute of limitations was
tolled and, if so, for how long;
c.h.
whether the 1935 copyrights claimed by Warner/Chappell are valid;
- 33 -
Exhibit B
Page 88
1
d.i.
whether Warner/Chappell is the exclusive owner of the copyright to
2
Happy Birthday to You and is thus entitled to all of the rights conferred
3
in 17 U.S.C. § 102;
4
e.j.
5
6
whether Warner/Chappell has the right to collect fees for the use of
Happy Birthday to You;
f.k.
whether Warner/Chappell has violated the law by demanding and
7
collecting fees for the use of Happy Birthday to You despite not having
8
a valid copyright to the song; and
9
g.l.
whether Warner/Chappell is required to return unlawfully obtained
10
payments to plaintiffs GMTY, Siegel, Rupa and Majar and the other
11
members of the Class and, if so, what amount is to be returned.
12
13
14
139.167.
With respect to Claims III and VII, the common questions of law
and fact predominate over any potential individual issues.
140.168.
Plaintiffs GMTY, Siegel, Rupa and Majar’s claims are typical of
15
the claims of all other members of the Class and plaintiffs GMTY, Siegel, Rupa and
16
Majar’s interests do not conflict with the interests of any other member of the Class,
17
in that plaintiffs and the other members of the Class were subjected to the same
18
unlawful conduct.
19
141.169.
Plaintiffs GMTY, Siegel, Rupa and Majar are committed to the
20
vigorous prosecution of this action and have retained competent legal counsel
21
experienced in class action and complex litigation.
22
142.170.
Plaintiffs are adequate representatives of the Class and, together
23
with their attorneys, are able to and will fairly and adequately protect the interests of
24
the Class and its members.
25
143.171.
A class action is superior to other available methods for the fair,
26
just, and efficient adjudication of the claims asserted herein. Joinder of all members
27
of the Class is impracticable and, for financial and other reasons, it would be
28
impractical for individual members of the Class to pursue separate claims.
- 34 -
Exhibit B
Page 89
1
172. Moreover, the prosecution of separate actions by individual members
2
of the Class would create the risk of varying and inconsistent adjudications, and
3
would unduly burden the courts.
4
5
144.173.
Plaintiffs GMTY, Siegel, Rupa and Majar anticipate no difficulty
in the management of this litigation as a class action.
6
FIRST CLAIM FOR RELIEF
7
DECLARATORY JUDGMENT PURSUANT TO 28 U.S.C. § 2201
8
(On Behalf Of Plaintiffs And The Class)
9
(Against All Defendants)
10
11
12
145.174.
Plaintiffs repeat and reallege paragraphs 1 through 14573 set
forth above as though they were fully set forth herein.
146.175.
Plaintiffs bring these claims individually on behalf of themselves
13
and on behalf of the proposed Class pursuant to Rule 23(b)(2) of the Federal Rules
14
of Civil Procedure.
15
147.176.
Plaintiffs seek adjudication of an actual controversy arising
16
under the Copyright Act, 17 U.S.C. §§ 101 et seq., in connection with Defendants’
17
purported copyright claim to Happy Birthday to You. Plaintiffs seek the Court’s
18
declaration that the Copyright Act does not bestow upon Warner/Chappell and/or
19
SBI the rights it has asserted and enforced against plaintiffs and the other members
20
of the Class. This is because either: (a) the 1935 registrations E51988 and E51990,
21
under which Warner/Chappell claims those copyrights, and the resulting copyrights
22
do not purport to cover and do not cover the familiar lyrics to Happy Birthday to
23
You, but instead are limited just to the particular arrangements written by Forman or
24
Orem (and, in the case of E51988, the obscure second verse which has no
25
commercial value); or (b) if and to the extent that those copyrights purport to cover
26
the familiar lyrics to Happy Birthday to You, the copyrights are invalid or have
27
expired.
28
148.177.
Defendants assert that they are entitled to mechanical and
- 35 -
Exhibit B
Page 90
1
performance royalties pursuant to 17 U.S.C. § 115 for the creation and distribution
2
of phonorecords and digital downloads of the composition Happy Birthday to You,
3
under threat of a claim of copyright infringement.
4
149.178.
Defendant Warner/Chappell demanded that plaintiff GMTY
5
enter into a synchronization license agreement to use Happy Birthday to You and
6
pay Warner/Chappell the sum of $1,500 for that synchronization license based upon
7
its claim of copyright ownership.
8
nature, and GMTY’s entering into the license agreement and payment of $1,500 was
9
involuntary.
10
150.179.
Warner/Chappell’s demand was coercive in
Plaintiff GMTY’s claim presents a justiciable controversy
11
because plaintiff GMTY’s agreement to pay defendant Warner/Chappell and its
12
actual payment to Warner/Chappell for use of the song Happy Birthday to You in its
13
film was the involuntary result of Warner/Chappell’s assertion of a copyright and
14
the risk that plaintiff GMTY would be exposed to substantial statutory penalties
15
under the Copyright Act had it failed to enter such an agreement and pay
16
Warner/Chappell the price it demanded.
17
151.180.
Defendant Warner/Chappell demanded that BIG FAN as
18
assignor of plaintiff Siegel enter into the Synchronization License agreement to use
19
Happy Birthday to You and pay Warner/Chappell the sum of $3,000 for that
20
Synchronization
21
ownership. Warner/Chappell’s demand was coercive in nature, and BIG FAN’S
22
entering into the Synchronization License and payment of $3,000 was involuntary.
23
152.181.
License
based
upon
its
claim
of
copyright
Plaintiff Siegel’s claim presents a justiciable controversy because
24
plaintiff Siegel’s agreement to pay defendant Warner/Chappell and its actual
25
payment to Warner/Chappell for use of the song Happy Birthday to You in its film
26
Big Fan, was the involuntary result of Warner/Chappell’s assertion of a copyright
27
and the risk that plaintiff Siegel would be exposed to substantial statutory penalties
28
under the Copyright Act had it failed to enter such an agreement and pay
- 36 -
Exhibit B
Page 91
1
Warner/Chappell the price it demanded, but then used Happy Birthday to You in its
2
film anyway.
3
153.182.
Plaintiff Rupa’s claim presents a justiciable controversy because
4
plaintiff Rupa’s agreement to pay defendant Warner/Chappell and its actual
5
payment to Warner/Chappell for use of the song Happy Birthday to You in her
6
album, was the involuntary result of Warner/Chappell’s assertion of a copyright and
7
the risk that plaintiff Rupa would be exposed to substantial statutory penalties under
8
the Copyright Act had she failed to enter such an agreement and pay
9
Warner/Chappell standard mechanical license royalties it demanded, but then paid
10
11
for the mechanical license anyway.
154.183.
Defendants demanded that Plaintiff Majar pay to Defendants a
12
licensing fee in the sum of $5,000 pursuant to Defendants’ claim of copyright
13
ownership, in order for Plaintiff Majar to use Happy Birthday in the Film.
14
Defendants’ demand was coercive in nature and Majar’s agreement to pay the fee
15
was involuntary.
16
155.184.
Plaintiff Majar's claim presents a justiciable controversy because
17
its actual payment of Defendants’ demanded fee to use Happy Birthday in the Film
18
was the involuntary result of Defendants’ assertion of a copyright and the risk that
19
Plaintiff Majar would be exposed to substantial statutory penalties under the
20
Copyright Act had it failed to seek Defendants’ approval to use the Song and/or
21
failed to pay Defendants’ demanded fee.
22
156.185.
Plaintiffs seek the Court’s determination as to whether
23
Defendants are entitled to assert ownership of the copyright to Happy Birthday to
24
You against Plaintiffs pursuant to the Copyright Act as Defendants claim, or whether
25
Defendants are wielding a false claim of ownership to inhibit Plaintiffs’ use and
26
enjoyment (and the public’s use and enjoyment) of intellectual property which is
27
rightfully in the public domain.
28
157.186.
If and to the extent that Defendants rely upon the 1893, 1896,
- 37 -
Exhibit B
Page 92
1
1899, or 1907 copyrights for the melody for Good Morning to All, those copyrights
2
expired or were forfeited as alleged herein.
3
158.187.
As alleged above, the 1893 and 1896 copyrights to the original
4
and revised versions of Song Stories for the Kindergarten, which contained the song
5
Good Morning to All, were not renewed by Summy Co. or Summy and accordingly
6
expired in 1921 and 1924, respectively.
7
159.188.
As alleged above, the 1893 copyright to Song Stories for the
8
Kindergarten and the 1899 copyright to Song Stories for the Sunday School, which
9
contained Good Morning to All, and the 1907 copyright to Good Morning to All
10
were not renewed by Summy Co. before Summy Co. was dissolved in 1920 and
11
accordingly, those copyrights expired in 1927 and 1935, respectively.
12
160.189.
The 1893, 1896, 1899, and 1907 copyrights to Good Morning to
13
All were forfeited by the republication of Good Morning to All in 1921 without
14
proper notice of its original 1893 copyright.
15
16
17
161.190.
The copyright to Good Morning to All expired in 1921 because
the 1893 copyright to Song Stories for the Kindergarten was not properly renewed.
162.191.
The piano arrangements for Happy Birthday to You published by
18
Summy Co. III in 1935 (Reg. Nos. E51988 and E51990): (a) do not give
19
Warner/Chappell copyrights to the familiar lyrics to Happy Birthday to You, but
20
instead are limited just to the particular arrangements written by Forman or Orem
21
(and, in the case of E51988, the obscure second verse which has no commercial
22
value); and (b) were not eligible for federal copyright protection because those
23
works did not contain original works of authorship, except to the extent of the piano
24
arrangements themselves.
25
163.192.
The 1934 and 1935 copyrights pertained only to the piano
26
arrangements or the obscure second verse, not to the melody or familiar first verse
27
lyrics of the song Happy Birthday to You.
28
164.193.
The registration certificates for The Elementary Worker and His
- 38 -
Exhibit B
Page 93
1
Work in 1912, Harvest Hymns in 1924, and Children’s Praise and Worship in 1928,
2
which did not attribute authorship of the lyrics to Happy Birthday to You to anyone,
3
are prima facie evidence that the lyrics were not authored by the Hill Sisters.
4
165.194.
If declaratory relief is not granted, defendant Warner/Chappell
5
will continue wrongfully to assert the exclusive copyright to Happy Birthday to You
6
at least until 2030, when the current term of the copyright expires under existing
7
copyright law.
8
166.195.
9
(a)
Plaintiffs therefore request a declaration that:
defendant Warner/Chappell and defendant SBI do not own the
10
copyright to, or possess the exclusive right to reproduce, distribute, or
11
publicly perform, Happy Birthday To You;
12
(b)
13
copyright to Happy Birthday to You, it is limited to four specific piano
14
arrangements or an obscure second verse that has no commercial value,
15
(c)
16
Warner/Chappell and defendant SBI may own or ever owned are
17
invalid or have expired;
18
(d)
19
exclusive right to demand or grant a license for use of Happy Birthday
20
To You; and
21
(e)
22
to the public use.
23
///
27
Happy Birthday to You is in the public domain and is dedicated
///
26
defendant Warner/Chappell and defendant SBI do not own the
///
25
any other copyright to Happy Birthday to You that defendant
///
24
if defendant Warner/Chappell and defendant SBI own any
///
28
- 39 -
Exhibit B
Page 94
1
SECOND CLAIM FOR RELIEF
2
UPON ENTRY OF DECLARATORY JUDGMENT
3
DECLARATORY AND INJUNCTIVE RELIEF
4
PURSUANT TO 28 U.S.C § 2202
5
(On Behalf of Plaintiffs and the Class)
6
(Against All Defendants)
7
8
9
167.196.
Plaintiffs repeat and reallege paragraphs 1 through 19567 set
forth above as though they were fully set forth herein.
168.197.
Plaintiffs bring these claims individually on their own behalf and
10
on behalf of the Class pursuant to Rule 23(b)(2) of the Federal Rules of Civil
11
Procedure.
12
169.198.
Under 28 U.S.C. § 2202 empowers this Court to grant,
13
“necessary or proper relief based on a declaratory judgment or decree . . . after
14
reasonable notice and hearing, against any adverse party whose rights have been
15
determined by such judgment.”
16
170.199.
Plaintiffs and the other proposed Class members have been
17
harmed,
18
Warner/Chappell’s takings.
19
20
and
171.200.
Defendants
have
been
unjustly
enriched,
by
Defendant
Plaintiffs seek relief for themselves and the other members of the
proposed Class upon the entry of declaratory judgment upon Claim I, as follows:
21
(a)
22
making further representations of ownership of the copyright to Happy
23
Birthday To You;
24
(b)
25
to Defendants, directly or indirectly through its agents, in connection with the
26
purported licenses it granted to Plaintiffs GMTY, Siegel, Rupa and Majar and
27
the other Class members;
28
(c)
an injunction to prevent Defendants Warner/Chappell and SBI from
restitution to Plaintiffs and the other Class members of license fees paid
an accounting for all monetary benefits obtained by Defendants,
- 40 -
Exhibit B
Page 95
1
directly or indirectly through its agents, from plaintiffs and the other Class
2
members in connection with its claim to ownership of the copyright to Happy
3
Birthday to You; and
4
(d)
such other further and proper relief as this Court sees fit.
5
THIRD CLAIM FOR RELIEF
6
UNFAIR BUSINESS ACTS AND PRACTICES IN VIOLATION OF
7
CALIFORNIA BUSINESS AND PROFESSIONS CODE §§ 17200, ET SEQ.
8
(On Behalf of Plaintiffs and the Class)
9
(Against All Defendants)
10
11
12
172.201.
Plaintiffs repeat and reallege paragraphs 1 through 17372 set
forth above as though they were fully set forth herein.
173.202.
Plaintiffs GMTY, Siegel, Rupa, and Majar bring these claims
13
individually on their own behalf, and also on behalf of the Class pursuant to Rule
14
23(b)(3) of the Federal Rules of Civil Procedure.
15
174.203.
As alleged herein, Plaintiffs GMTY, Siegel, Rupa and Majar and
16
the other Class members have paid licensing fees to defendants Warner/Chappell
17
and/or SBI and have therefore suffered injury in fact and have lost money or
18
property as a result of Defendants’ conduct.
19
175.204.
California’s Unfair Competition Laws, Business & Professions
20
Code §§ 17200 et seq. (“UCL”), prohibit any unlawful or unfair business act or
21
practice.
22
23
24
176.205.
UCL § 17200 further prohibits any fraudulent business act or
practice.
177.206.
Defendants’ actions, claims, nondisclosures, and misleading
25
statements, as alleged in this Complaint, were unfair, false, misleading, and likely to
26
deceive the consuming public within the meaning of UCL §§ 17200, 17500.
27
28
178.207.
The conduct of Defendants in exerting control over exclusive
copyright ownership to Happy Birthday to You to extract licensing fees is deceptive
- 41 -
Exhibit B
Page 96
1
and misleading because neither Warner/Chappell nor SBI own the rights to Happy
2
Birthday to You.
3
179.208.
Plaintiffs and the other members of the Class have, in fact, been
4
deceived as a result of their reasonable reliance upon Defendants’ materially false
5
and misleading statements and omissions, as alleged above.
6
180.209.
As a result of Defendants’ unfair and fraudulent acts and
7
practices as alleged above, Plaintiffs and the other Class members have suffered
8
substantial monetary injuries.
9
181.210.
Plaintiffs and the other Class members reserve the right to allege
10
other violations of law which constitute other unfair or deceptive business acts or
11
practices. Such conduct is ongoing and continues to this date.
12
13
14
182.211.
As a result of its deception, Defendants Warner/Chappell and
SBI have been able to reap unjust revenue and profit.
183.212.
Upon information and belief, Defendants have collected and
15
continue to collect at least $2 million per year in licensing fees for Happy Birthday
16
to You. Therefore, the amount in controversy exceeds $5 million in the aggregate.
17
184.213.
Unless restrained and enjoined, Defendants will continue to
18
engage in the above-described conduct.
19
appropriate.
20
185.214.
Accordingly, injunctive relief is
Plaintiffs, individually on their own behalf and on behalf of the
21
other members of the Class, seek restitution and disgorgement of all money obtained
22
from Plaintiffs and the other members of the Class, collected as a result of unfair
23
competition, and all other relief this Court deems appropriate, consistent with UCL
24
§ 17203.
25
FOURTH CLAIM FOR RELIEF
26
BREACH OF CONTRACT
27
(On Behalf of Plaintiffs and the Class)
28
(Against All Defendants)
- 42 -
Exhibit B
Page 97
1
187. Plaintiffs repeat and reallege each and every foregoing allegation as
2
though fully set forth herein.
3
188. Plaintiffs
entered
into
license
agreements
with
Defendant
4
Warner/Chappell wherein Warner/Chappell represented and warranted that it and/or
5
its co-Defendant SBI owned the rights to Happy Birthday as licensed therein.
6
189. Plaintiffs are informed and believe that Defendants’ licensing
7
agreements are the same or substantially similar as to all Class members,
8
particularly with respect to Defendants’ claim of ownership of the copyright to
9
Happy Birthday.
10
11
190. Plaintiffs and the Class have satisfied their obligations under each such
licensing agreement with Warner/Chappell.
12
191. As alleged herein, Defendants do not own the copyright interests
13
claimed in Happy Birthday and, as a result of its unlawful and false assertions of the
14
same, Defendants have violated the representations and warranties made in the
15
licensing agreements, thereby materially breaching the licensing agreements.
16
17
192. By reason of the foregoing, Plaintiffs and the Class have been damaged
in an amount to be determined at trial.
18
FIFTH CLAIM FOR RELIEF
19
COMMON LAW FOR MONEY HAD AND RECEIVED
20
(On Behalf of Plaintiffs and the Class)
21
(Against All Defendants)
22
193. Plaintiffs
repeat
and
reallege
each
and
every
foregoing
23
allegationparagraphs 1 through 192 set forth above as though they were fully set
24
forth herein.
25
194. Within the last four years, Defendants Warner/Chappell and/or SBI
26
became indebted to Plaintiffs and all class members for money had and received by
27
Defendants for the use and benefit of Plaintiffs and class members. The money in
28
equity and good conscience belongs to Plaintiffs and class members.
- 43 -
Exhibit B
Page 98
1
SIXTH CLAIM FOR RELIEF
2
RESCISSION FOR FAILURE OF CONSIDERATION
3
(On Behalf of Plaintiffs and the Class)
4
(Against All Defendants)
5
6
7
8
9
10
195. Plaintiffs repeat and reallege each and every foregoing allegation
paragraphs 1 through 194 set forth above as though they were fully set forth herein.
196. Defendants’ purported licenses were worthless and ineffective, and do
not constitute valid consideration.
197. The complete lack of consideration obviates any need for notice to
Defendants.
11
SEVENTH CLAIM FOR RELIEF
12
FALSE ADVERTISING LAWS IN VIOLATION OF
13
CALIFORNIA BUSINESS & PROFESSIONS CODE §§ 17500, ET SEQ.
14
(On Behalf of Plaintiffs and the Class)
15
(Against All Defendants)
16
17
198. Plaintiffs repeat and reallege each and every foregoing allegation
paragraphs 1 through 197 set forth above as though they were fully set forth herein.
18
199. On information and belief, Defendants Warner/Chappell and SBI
19
intended to induce the public to enter into an obligation related to its alleged
20
property, namely the composition Happy Birthday to You.
21
200. Defendants Warner/Chappell and/or SBI publicly disseminated
22
advertising which contained statements which were untrue and misleading and
23
which concerned the composition Happy Birthday to You, for which they
24
improperly sought and received licensing fees. Defendants knew, or in the exercise
25
of reasonable care should have known, that these statements were untrue and
26
misleading.
27
28
201. Plaintiffs and class members have suffered injury in fact and have lost
money as a result of such unfair competition.
- 44 -
Exhibit B
Page 99
1
PRAYER FOR RELIEF
2
WHEREFORE, Plaintiffs GMTY, Siegel, Rupa and Majar on behalf of
3
themselves and the other members of the Class, pray for judgment against
4
Defendants as follows:
5
A.
certifying the Class as requested herein;
6
B.
declaring that the song Happy Birthday to You is not protected by
7
federal copyright law, is dedicated to public use, and is in the public domain;
8
C.
9
asserting any copyright to the song Happy Birthday to You;
permanently enjoining Defendants Warner/Chappell and SBI from
10
D.
11
charging or collecting any licensing or other fees for use of the song Happy
12
Birthday to You;
13
E.
14
Warner/Chappell and SBI unlawfully collected from Plaintiffs, the other
15
members of the Class, and ASCAP for use of the song Happy Birthday to
16
You;
17
F.
18
and the other members of the Class all the licensing or other fees they have
19
collected from them, directly or indirectly through its agents, for use of the
20
song Happy Birthday to You, together with interest thereon;
21
G.
22
defendant Warner/Chappell and SBI’s prior acts and practices;
23
H.
24
and
25
I.
26
proper.
27
28
permanently enjoining Defendants Warner/Chappell and SBI from
imposing
a
constructive
trust
upon
the
money
Defendants
ordering Defendants Warner/Chappell and SBI to return to Plaintiffs
awarding Plaintiffs and the other members of the Class restitution for
awarding Plaintiffs and the Class reasonable attorneys’ fees and costs;
granting such other and further relief as the Court deems just and
///
///
- 45 -
Exhibit B
Page 100
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Dated: October 296, 2015April 18, 2014
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
By:
s/Betsy C. Manifold
BETSY C. MANIFOLD
FRANCIS M. GREGOREK (144785)
gregorek@whafh.com
BETSY C. MANIFOLD (182450)
manifold@whafh.com
RACHELE R. RICKERT (190634)
rickert@whafh.com
MARISA C. LIVESAY (223247)
livesay@whafh.com
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: 619/239-4599
Facsimile: 619/234-4599
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
rifkin@whafh.com
JANINE POLLACK (pro hac vice)
pollack@whafh.com
270 Madison Avenue
New York, NY 10016
Telephone: 212/545-4600
Facsimile: 212-545-4753
Interim Lead Class Counsel for Plaintiffs
20
21
22
23
24
RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
rsn@randallnewman.net
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: 212/797-3737
Facsimile: 212/797-3172
25
26
27
28
DONAHUE GALLAGHER WOODS LLP
WILLIAM R. HILL (114954)
rock@donahue.com
ANDREW S. MACKAY (197074)
andrew@donahue.com
- 46 -
Exhibit B
Page 101
1
2
3
4
5
6
7
8
9
10
11
12
DANIEL J. SCHACHT (259717)
daniel@donahue.com th
1999 Harrison Street, 25 Floor
Oakland, CA 94612-3520
Telephone: 510/451-0544
Facsimile: 510/832-1486
GLANCY PRONGAY & MURRAY, LLP
LIONEL Z. GLANCY (134180)
lglancy@glancylaw.com
MARC L. GODINO (182689)
mgodino@glancylaw.com
KARA M. WOLKE (241521)
kwolke@glancylaw.com
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
20
HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
gibbs@huntortmann.com
OMEL A. NIEVES (134444)
nieves@nieves-law.com
KATHLYNN E. SMITH (234541)
smith@huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone 626/440-5200
Facsimile 626/796-0107
21
Counsel for Plaintiffs
13
14
15
16
17
18
19
22
23
24
25
26
27
28
- 47 -
Exhibit B
Page 102
1
DEMAND FOR JURY TRIAL
2
Plaintiffs Good Morning To You Productions Corp. Robert Siegel, Rupa
3
Marya and Majar Productions, LLC, hereby demand a trial by jury to the extent that
4
the allegations contained herein are triable by jury under Rules 38-39 of the Federal
5
Rules of Civil Procedure 38-39 and Civil L.R. 38-1.
6
7
Dated: October 29, 2015April 18, 2014
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
By:
s/Betsy C. Manifold
BETSY C. MANIFOLD
FRANCIS M. GREGOREK (144785)
gregorek@whafh.com
BETSY C. MANIFOLD (182450)
manifold@whafh.com
RACHELE R. RICKERT (190634)
rickert@whafh.com
MARISA C. LIVESAY (223247)
livesay@whafh.com
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: 619/239-4599
Facsimile: 619/234-4599
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
rifkin@whafh.com
JANINE POLLACK (pro hac vice)
pollack@whafh.com
270 Madison Avenue
New York, NY 10016
Telephone: 212/545-4600
Facsimile: 212-545-4753
24
25
Interim Lead Class Counsel for Plaintiffs
26
27
28
RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
rsn@randallnewman.net
37 Wall Street, Penthouse D
- 48 -
Exhibit B
Page 103
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
New York, NY 10005
Telephone: 212/797-3737
Facsimile: 212/797-3172
DONAHUE GALLAGHER WOODS LLP
WILLIAM R. HILL (114954)
rock@donahue.com
ANDREW S. MACKAY (197074)
andrew@donahue.com
DANIEL J. SCHACHT (259717)
daniel@donahue.com th
1999 Harrison Street, 25 Floor
Oakland, CA 94612-3520
Telephone: 510/451-0544
Facsimile: 510/832-1486
GLANCY PRONGAY & MURRAY, LLP
LIONEL Z. GLANCY (134180)
lglancy@glancylaw.com
MARC L. GODINO (182689)
mgodino@glancylaw.com
KARA M. WOLKE (241521)
kwolke@glancylaw.com
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
25
HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
gibbs@huntortmann.com
OMEL A. NIEVES (134444)
nieves@nieves-law.com
KATHLYNN E. SMITH (234541)
smith@huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone 626/440-5200
Facsimile 626/796-0107
26
Counsel for Plaintiffs
18
19
20
21
22
23
24
27
28
- 49 -
Exhibit B
Page 104
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